Citation Nr: 0013384
Decision Date: 05/19/00 Archive Date: 05/24/00
DOCKET NO. 95-42 383 ) DATE
)
)
On appeal from a decision certified by the
Department of Veterans Affairs Medical and Regional Office
Center in Fargo, North Dakota
THE ISSUES
1. Entitlement to service connection for disabilities, to
include lung cancer, due to radiation exposure.
2. Entitlement to an increased rating for cystic acne
vulgaris, currently evaluated as 30 percent disabling.
3. Entitlement to an effective date prior to March 23, 1994,
for assignment of a 30 percent disability evaluation for
cystic acne vulgaris.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S.M. Cieplak, Associate Counsel
INTRODUCTION
The veteran had active duty service from July 1950 to
February 1952.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the St. Paul,
Minnesota, Regional Office, and the Fargo, North Dakota,
Regional Office (RO) of the Department of Veterans Affairs
(VA).
The case was previously before the Board in June 1999, at
which time it was remanded for consideration of new evidence.
In December 1996, the veteran appeared at a personal hearing
at the RO. A hearing scheduled for October 19, 1998, before
the undersigned member of the Board sitting in Washington,
D.C. was postponed and rescheduled for February 8, 1999;
however, the veteran failed to appear.
The claim of entitlement to service connection for
disabilities, to include lung cancer, claimed as due to
exposure to radiation is addressed in the remand portion of
the following decision.
FINDINGS OF FACT
1. The veteran's service-connected cystic acne vulgaris is
manifested by scars of face, chest and back from prior active
pathology, with occasional large comedones of the back, but
without current active acne of the face, chest or back.
2. On March 23, 1994, the RO received a communication from
the veteran which was construed as a request for an increased
rating for his service-connected cystic acne vulgaris.
3. The veteran underwent a VA skin examination in April
1995, and by rating decision in May 1995, the RO increase the
disability evaluation for the veteran's service-connected
cystic acne vulgaris from 20 percent to 30 percent.
4. During the one year period prior to March 23, 1994, it
was not factually ascertainable that the criteria for a 30
percent evaluation for service-connected cystic acne vulgaris
had been met.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an evaluation in excess
of 30 percent for service-connected cystic acne vulgaris have
not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38
C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.20, 4.118, Diagnostic
Codes 7800-7806 (1999).
2. The criteria for entitlement to an effective date prior
to March 23, 1994, for a 30 percent evaluation for cystic
acne vulgaris have not been met. 38 U.S.C.A. § 5110 (West
1991); 38 C.F.R. § 3.400 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Increased Rating For Cystic Acne Vulgaris
The veteran claims that he has suffered an increase in the
severity of this service-connected disability. When a
veteran is seeking an increased rating, such an assertion of
an increase in severity is sufficient to render the increased
rating claim well-grounded. 38 U.S.C.A. § 5107(a); Proscelle
v. Derwinski, 2 Vet. App. 629, 632 (1992). With a well-
grounded claim arises a statutory duty to assist the veteran
with the development of evidence in connection with his
claim. 38 U.S.C.A. § 5107(a). After noting that the claims
file includes several VA examinations as well as clinical
reports together with current and historic photographs of the
veteran's acne vulgaris, the Board finds that the record as
it stands is adequate to allow for equitable review of the
veteran's increased rating claim and that no further action
is necessary to meet the duty to assist the veteran.
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
The veteran's skin problems were exacerbated in service and
were initially manifested by increasing size of infections on
his face and neck. By January 1952, shortly before his
discharge from service, the active acne condition had
improved and was clinically characterized as "mild as
compared with very severe acne of the face present on
original [hospitalization] in May [1951]."
In April 1995, the veteran was afforded a VA skin
examination. The examiner reported that there was no active
acne of the face, chest or back but with occasional large
comedones of the back and chest.
In January 1997, the veteran was afforded another VA skin
examination. Objectively, he had scars on his cheeks. There
were no papules, comedones or cysts appreciated. The tip of
his nose was red with a few small red inflammatory lesions.
On his back and chest, there was much scarring with
occasional blackheads. There were no papules or cysts.
Diagnosis was scars of face, chest and back from prior cystic
acne; there was no active acne, but there were some
back/chest blackheads; rosacea of the nose tip; lichen
simplex chronicus of the right foot.
Rating by analogy is appropriate where an unlisted condition
such as acne is encountered, with evaluation rendered in
accordance with the criteria for a listed closely related
condition which approximates the anatomical localization,
symptomatology and functional impairment. 38 C.F.R. §§ 4.20,
4.27; see also Lendenmann v. Principi, 2 Vet. App. 345
(1992); Pernorio v. Derwinski, 2 Vet. App. 625 (1992).
Acne vulgaris may be rated by analogy to Diagnostic Code
7800, which provides that a 10 percent evaluation is
warranted for moderately disfiguring scars of the head, face
or neck and a 30 percent evaluation is warranted where,
especially if producing a marked and unsightly deformity of
eyelids, lips and auricles. 38 C.F.R. § 4.118, Diagnostic
Code 7800. However, severe impairment, producing a marked
and unsightly deformity of eyelids, lips and auricles is not
clinically demonstrated. Only scars on the cheeks were
reported on VA examination in 1997. Accordingly, evaluation
of the veteran's disability pursuant to these diagnostic
criteria would not be more beneficial.
Acne vulgaris may also be rated by analogy to Diagnostic Code
7806, which pertains to eczema. Eczema with exfoliation,
exudation or itching, if involving an exposed surface or
extensive area warrants a 10 percent evaluation and eczema
with constant exudation or itching, extensive lesions, or
marked disfigurement warrants a 30 percent evaluation.
Eczema with ulceration or extensive exfoliation or crusting,
and systemic or nervous manifestations, or exceptionally
repugnant, is assigned a 50 percent rating. 38 C.F.R. §
4.118, Code 7806.
While at one point during military service the veteran's skin
disability was characterized as severe, the condition was
improved on the veteran's separation from service. At that
time, his acne vulgaris was clinically assessed as mild. The
Board is of the opinion that the current clinical findings
demonstrate manifestations of symptomatology which do not
approach the assignment of a 50 percent rating for the
veteran's service-connected skin disorder under any of the
applicable diagnostic codes. The evidence shows no more than
severe scarring of the face, and the current 30 percent
evaluation contemplates such scarring. There is no evidence
of complete or exceptionally repugnant scarring of the head,
face or neck to warrant the next higher rating of 50 percent
under Code 7800, nor is there evidence of excoriation,
ulcerations or exfoliation, to warrant assignment of a 50
percent evaluation under Code 7806.
The Board notes that the veteran has asserted that his
condition is worse and points primarily to medical records
generated at the time of his active service to demonstrate
entitlement to increased disability. The Board emphasizes
that in the context of increased rating the primary concern
is the present level of disability.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards."
38 C.F.R. § 3.321(b)(1). In this regard, the Board finds
that there has been no showing by the veteran that the
service connected disorder at issue has resulted in marked
interference with employment or necessitated frequent periods
of hospitalization so as to render impractical the
application of the regular rating schedule standards. In the
absence of such factors, the Board finds that criteria for
submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
Finally, the Board has considered the provisions of 38
U.S.C.A. § 5107(b), but there is not such a state of
equipoise of the positive evidence and the negative evidence
to otherwise permit a favorable resolution of the present
appeal.
Earlier Effective Date
The May 1995 rating decision which increased the evaluation
for the service-connected acne from 20 percent to 30 percent
assigned an effective date of March 23, 1994. The veteran
contends that an earlier effective date back to his discharge
from service is warranted.
In regards to the contention that an effective date all the
way back to service discharge is warranted, the Board notes
that the 20 percent evaluation continued by an unappealed
rating determination in October 1985. Generally, an
appellant must initiate an appeal by filing a notice of
disagreement within one year from the date of notice of the
result of the initial determination. Absent such action, a
rating determination is considered to be final and is not
subject to review. 38 U.S.C.A. § 7105(c). Based on the
finality doctrine, there is no basis for assigning the 30
percent evaluation back to the time of discharge from
service.
The veteran's current claim for an increased evaluation for
cystic acne vulgaris was received on March 23, 1994. By law,
the effective date of an award of increased compensation
shall be the date of claim, or the date entitlement is shown,
whichever is later. 38 C.F.R. § 3.400. However, it is also
provided that the effective date will be the date it is
factually ascertainable that an increase in disability
occurred if a claim is received within one year of such date;
otherwise, the effective date will be not earlier than the
date of receipt of application therefor. 38 U.S.C.A. § 5110;
38 C.F.R. § 3.400(o)(2).
In reviewing the claims files, it does not appear that there
is any evidence suggesting that it was factually
ascertainable during the one year period prior to March 23,
1994, that the criteria for assignment of a 30 percent rating
had been met. Accordingly, the Board finds that there is no
legal basis on which an effective date prior to March 23,
1994 can be assigned.
ORDER
Entitlement to an evaluation in excess of 30 percent for
service-connected cystic acne vulgaris is not warranted.
Entitlement to an effective date prior to March 23, 1994, for
assignment of a 30 percent evaluation for service-connected
cystic vulgaris is not warranted. To this extent, the appeal
is denied.
REMAND
The veteran claims that while in service he was subjected to
experimental medical treatment for his skin condition,
including treatment by radiation therapy. He also claims to
have been exposed to radiation residuals associated with
nuclear bomb testing while stationed at White Sands, New
Mexico in 1950-1951.
In a letter dated November 1, 1996, the Department of the
Army Radiation Dosimeter Center was unable to locate any
records confirming the veteran's claimed exposure to ionizing
radiation. However, service records corroborate that the
veteran did receive X-ray and vaccine therapy during the
course of his treatment for his skin condition.
Correspondence dated in March 1997 from the Department of the
Army Radiation Experiments Command Center (RECC) indicated
that the veteran's service records or the RECC database
failed to support participation in any experimental radiation
studies; however, that correspondence interpreted that his
service records supported that he did receive radiation
therapy.
The record shows that a squamous cell carcinoma in the left
lung was diagnosed by a November 1999 VA pathology report. A
November 1999 letter from the Department of Health and Human
Services diagnosed the veteran with lung cancer.
A "radiogenic disease" is defined as a disease that may be
induced by ionizing radiation, and includes those diseases,
including lung cancer, listed at 38 C.F.R. § 3.311(b)(2)
(1999), as amended at 63 Fed. Reg. 50,993-95 (Sept. 24,
1998). Development of a radiogenic disease coupled with a
claim of radiation exposure necessitates adherence to special
regulatory controls. Development pursuant to "Other
exposure claims" governed by 38 C.F.R. § 3.311(a)(2)(iii) is
indicated.
The pertinent provision provides:
In all other claims involving radiation
exposure, a request will be made for any
available records concerning the
veteran's exposure to radiation. These
records normally include but may not be
limited to the veteran's Record of
Occupational Exposure to Ionizing
Radiation (DD Form 1141), if maintained,
service medical records, and other
records which may contain information
pertaining to the veteran's radiation
dose in service. All such records will
be forwarded to the Under Secretary for
Health, who will be responsible for
preparation of a dose estimate, to the
extent feasible, based on available
methodologies. Id.
The Board considers that further development in accordance
with the foregoing provision is indicated to include
solicitation of a dose estimate from the Under Secretary for
Health.
Accordingly, the case is REMANDED for the following:
1. In accordance with 38 C.F.R.
§ 3.311(a)(2)(iii), the RO should obtain
a radiation dosage estimate from the
Under Secretary for Health and,
thereafter, forward the record to the
Under Secretary for Benefits for review
pursuant to 38 C.F.R. § 3.311(c).
2. When the development required by 38
C.F.R. § 3.311 is completed, and
undertaking any additional development
indicated, if the benefit sought is not
granted, the RO should issue a
supplemental statement of the case. The
case should then be returned to the
Board, if in order, after completion of
the necessary procedures.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the regional
office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
ALAN S. PEEVY
Member, Board of Veterans' Appeals